w w w . L a w y e r S e r v i c e s . i n



The Management, Palace Nagar Co-Operative House Building Society Limited, Rep., by its President, Salem v/s P. Raja Gounder, Vellalapatti, Salem & Another


Company & Directors' Information:- S. M. MANAGEMENT PRIVATE LIMITED [Active] CIN = U74140AS2005PTC007642

Company & Directors' Information:- C & K MANAGEMENT LIMITED [Active] CIN = U91990TG2000PLC033293

Company & Directors' Information:- S M MANAGEMENT PVT LTD [Not available for efiling] CIN = U74140WB1992PTC002848

Company & Directors' Information:- S M MANAGEMENT PVT LTD [Not available for efiling] CIN = U74140WB1992PTC057260

Company & Directors' Information:- RAJA INDIA PRIVATE LIMITED [Active] CIN = U99999DL1997PTC084258

Company & Directors' Information:- PALACE INDIA LIMITED [Active] CIN = U74899DL1995PLC066720

Company & Directors' Information:- R. B. PALACE PRIVATE LIMITED [Active] CIN = U55101CT2007PTC020264

Company & Directors' Information:- ON THE HOUSE PRIVATE LIMITED [Active] CIN = U70101WB2000PTC091842

Company & Directors' Information:- C D HOUSE INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC068483

Company & Directors' Information:- W P MANAGEMENT INDIA PRIVATE LIMITED [Active] CIN = U40100TG2016PTC112006

Company & Directors' Information:- S R MANAGEMENT PRIVATE LIMITED [Active] CIN = U74140MH2000PTC129839

Company & Directors' Information:- H. H. HOUSE PRIVATE LIMITED [Converted to LLP] CIN = U45201DL1981PTC012646

Company & Directors' Information:- M C B HOUSE PRIVATE LIMITED [Active] CIN = U52335DL1999PTC099967

Company & Directors' Information:- M B MANAGEMENT PVT LTD [Strike Off] CIN = U99999MH1981PTC025914

Company & Directors' Information:- A K HOUSE PRIVATE LIMITED [Strike Off] CIN = U70109WB1953PTC021083

Company & Directors' Information:- NAGAR CORPORATION PRIVATE LIMITED [Active] CIN = U74900PN2013PTC148356

Company & Directors' Information:- W P MANAGEMENT INDIA PRIVATE LIMITED [Active] CIN = U45201TG2016PTC112006

Company & Directors' Information:- I & J MANAGEMENT PRIVATE LIMITED [Active] CIN = U93000DL2016PTC292375

Company & Directors' Information:- H AND S MANAGEMENT PRIVATE LIMITED [Active] CIN = U74140KL2005PTC018253

Company & Directors' Information:- SALEM BUILDING COMPANY PRIVATE LIMITED [Strike Off] CIN = U45201TZ1964PTC000524

Company & Directors' Information:- K SALEM LIMITED [Dissolved] CIN = U99999MH1947PTC005530

    W.P. No. 16817 of 2015 & M.P. Nos. 1 of 2015 & 18401 of 2016

    Decided On, 13 November 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM

    For the Petitioner: L.P. Shanmugasundaram, Advocate. For the Respondents: R1, D. Geetha, R2, J. Ramesh, Additional Government Pleader.



Judgment Text

(Prayer: Petition under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records relating to the passing of the award in P.G.No.47 of 2014 dated 11.05.2015 on the file of the 2nd respondent and quash the same as being illegal, arbitrary and unconstitutional in the interest of justice.)

1. The Writ on hand is filed challenging the order dated 11.05.2015, passed by the 2nd respondent in P.G.No.47 of 2014.

2. The writ petitioner is the Management of Palace Nagar Co-operative House Building Society Limited.

3. The learned counsel appearing on behalf of the writ petitioner Management made a submission that the 1st respondent employee was working as a Clerk in the writ petitioner Co-operative Society and he is entitled for the gratuity of about Rs.99,755/-. However, the Controlling Authority under the Payment of Gratuity Act, 1972 (hereinafter referred to as “the Act”) granted excess gratuity amount more than the eligibility of the 1st respondent. Thus, the petitioner is constrained to move the present writ petition.

4. This Court is of a considered opinion that the Act provides an appeal under Section 7(7) of the Act, which is to be preferred before the appellate authority. Admittedly, the petitioner has not exhausted the appeal remedy provided under the statute. This Court cannot entertain the writ petition at this stage, as the statute contemplates an appeal.

5. Filing a writ petition is an exception and preferring an appeal contemplated under the statute is the rule. Thus, the provision is to be followed at the first instance and a writ petition can be entertained only on certain exceptional circumstances and not otherwise. However, in the present case, there is no valid reason for not preferring an appeal under Section 7(7) of the Act.

6. Regarding exhausting of the appeal remedy, this Court has elaborately considered the legal principles in the case of M/s.Hyundai Motor India Limited vs. The Deputy Commissioner of Income Tax and Another [W.P.No.22508 of 2017: Dated 16.07.2018] and the relevant paragraphs are extracted hereunder:

''19. Unnecessary or routine invasion into the statutory powers of the competent authorities under a statute should be restrained by the Constitutional Courts. Frequent or unnecessary invasions in the executive power will defeat the constitutional perspectives enshrined under the Constitution of India. Undoubtedly, the separation of powers under the Indian Constitution has been narrated and settled in umpteen number of judgments. Separation of powers demarcated in the Constitution of India is also to be considered, while exercising the powers of judicial review in the matter of dispensing with the appeal remedy provided for an aggrieved person under a statute. If the High Courts started interfering with such Appellate powers without any valid and substantiated reasons, then the very purpose and object of the statute and provision of appeal under the statute became an empty formality and the High Courts also should see that the provisions of appeal contemplated under the statutes are implemented in its real spirit and in accordance with the procedures contemplated under the rules constituted thereon. While entertaining a writ petition as narrated by the Apex Court, the provision of efficacious alternative remedy under the statute also to be considered. If the writ petitions are entertained in a routine manner, by not allowing the competent Appellate authority to exercise their powers under the provisions of the statute, then this Court is of an opinion that the power of judicial review has not exercised in a proper manner. Thus, it is necessary for this Court to elaborate the legal principle settled in respect of the separation of powers under the Constitution of India.

1. Madras Bar Association vs. Union of India (UOI) (25.09.2014 - SC) : MANU/SC/0875/2014

If the historical background, the preamble, the entire scheme of the Constitution, relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated):

(1) The supremacy of the Constitution.

(2) Republican and Democratic form of government and sovereignty of the country.

(3) Secular and federal character of the Constitution.

(4) Demarcation of power between the Legislature, the executive and the judiciary.

(5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV.

(6) The unity and the integrity of the Nation.

2. Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. [MANU/SC/0445/1973: (1973) 4 SCC 225].

That separation of powers between the legislature, the executive and the judiciary is the basic structure of the Constitution is expressly stated by Sikri, C.J.

3. P. Kannadasan and Ors. v. State of T.N. and Ors. [MANU/SC/0650/1996 : (1996) 5 SCC 670] the Supreme Court noted that the Constitution of India recognised the doctrine of separation of powers between the three organs of the State, namely, the legislature, the executive and the judiciary. The Court said:

It must be remembered that our Constitution recognises and incorporates the doctrine of separation of powers between the three organs of the State, viz., the Legislature, the Executive and the Judiciary. Even though the Constitution has adopted the parliamentary form of government where the dividing line between the legislature and the executive becomes thin, the theory of separation of powers is still valid.

4. State of Tamil Nadu and Ors. vs. State of Kerala and Ors. (07.05.2014 - SC) : MANU/SC/0425/2014

121. On deep reflection of the above discussion, in our opinion, the constitutional principles in the context of Indian Constitution relating to separation of powers between legislature, executive and judiciary may, in brief, be summarized thus:

(i) Even without express provision of the separation of powers,the doctrine of separation of powers is an entrenched principle in the Constitution of India.

The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law.

In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs- legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of power, the separation of power between legislature, executive and judiciary is not different from the constitutions of the countries which contain express provision for separation of powers.

(ii) Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution.

Separation of judicial power is a significant constitutional principle under the Constitution of India.

(iii) Separation of powers between three organs--legislature, executive and judiciary--is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality Under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality Under Article 14 of the Constitution.

(iv) The superior judiciary (High Courts and Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament and State legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution.

(v) The doctrine of separation of powers applies to the final judgments of the courts. Legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aligned.

In other words, a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.

(vi) If the legislature has the power over the subject-matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation law it removes the defect which the courts had found in the existing law.”

20. This Court is of a strong opinion that institutional respects are to be maintained by the constitutional Courts. Whenever there is a provision for an appeal under the statute, without exhausting the remedies available under the statute, no writ petition can be entertained in a routine manner. Only on exceptional circumstances, the remedy of appeal can be waived, if there is a gross injustice or if there is a violation of fundamental rights ensured under the Constitution of India. Otherwise, all the aggrieved persons from and out of the order passed by the original authority is bound to approach the Appellate Authority. The Constitutional Courts cannot make an appeal provision as an empty formality. Every Appellate Authority created under the statute to be trusted in normal circumstances unless there is a specific allegation, which is substantiated in a writ proceedings. Thus, the institutional functions and exhausting the appeal remedies by the aggrieved persons, are to be enforced in all circumstances and writ proceedings can be entertained only on exceptional circumstances. Rule is to prefer an appeal and entertaining a writ is only an exception. This being the legal principles to be followed, this Court cannot entertain the writ petitions in a routine manner by waiving the remedy of appeal provided under the statute.

21. Now, let us look into the legal principles settled by the Apex Court for exhausting the efficacious alternative remedy provided under the statute.

22. When an effective alternative remedy is available, a writ petition cannot be maintained

1. In City and Industrial Development Corporation v. DosuAardeshirBhiwandiwala and Ors. MANU/SC/8250/2008 : (2009) 1 SCC 168, this Court had observed that:

The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:

(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the Petitioner has any alternative or effective remedy for the resolution of the dispute;

(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or barred by any valid law; and host of other factors.

2. KanaiyalalLalchand Sachdev and Ors. vs. State of Maharashtra and Ors. (07.02.2011 - SC) : MANU/SC/0103/2011

It is well settled that ordinarily relief Under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd.; Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.)

3. Commissioner of Income Tax and Ors. v. ChhabilDass Agarwal, MANU/SC/0802/2013 : 2014 (1) SCC 603, as follows:

Para 15. while it can be said that this Court has recognised some exceptions to the Rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in ThansinghNathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition Under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

4. Authorized Officer, State Bank of Travancore and Ors. vs. Mathew K.C. (30.01.2018 - SC) : MANU/SC/0054/2018

The petitioner argued that the SARFAESI Act is a complete code by itself, providing for expeditious recovery of dues arising out of loans granted by financial institutions, the remedy of appeal by the aggrieved under Section 17 before the Debt Recovery Tribunal, followed by a right to appeal before the Appellate Tribunal under Section 18. The High Court ought not to have entertained the writ petition in view of the adequate alternate statutory remedies available to the Respondent. The interim order was passed on the very first date, without an opportunity to the Appellant to file a reply. Reliance was placed on United Bank of India vs. Satyawati Tandon and others, 2010 (8) SCC 110, and General Manager, Sri Siddeshwara Cooperative Bank Limited and another vs. Ikbal and others, 2013 (10) SCC 83. The writ petition ought to have been dismissed at the threshold on the ground of maintainability. The Division Bench erred in declining to interfere with the same. The Supreme Court agreed to the arguments and held the same also noted that the writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum.

5. State of Himachal Pradesh v. Gujarat Ambuja Cement Ltd. reported at AIR 2005 SC 3856, the Supreme Court explained the rule of 'alternate remedy' in the following terms Considering the plea regarding alternative remedy as raised by the appellant-State. Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist goodgrounds to invoke the extraordinary jurisdiction.

6. K.S. Rashid and Sons v. Income Tax Investigation Commission and Ors., AIR (1954) SC 207; Sangram Singh v. Election Tribunal, Kotah and Ors., AIR (1955) SC 425; Union of India v. T.R. Varma, AIR (1957) SC 882; State of U.P. and Ors. v. Mohammad Nooh, AIR (1958) SC 86 and M/s K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, AIR (1966) SC 1089, Constitution Benches of the Supreme Court held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.

7. First Income-Tax Officer, Salem v. M/s. Short Brothers (P) Ltd., [1966] 3 SCR 84 and State of U.P. and Ors. v. M/s. Indian Hume Pipe Co. Ltd., [1977] 2 SCC 724.

There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.

23. Considering the above judgments of the Apex Court, this Court is of an opinion that the writ petitioner

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has not established that there is a violation of principles of natural justice nor there is an error apparent on record. No exceptional circumstances have been established in the present writ petition. If at all, the writ petitioner is aggrieved in respect of the fixing of average rate of royalty payment, then it is left open to them to approach the Disputes Resolution Panel and thereafter, if they are further aggrieved in respect of the fixing of average rate of royalty payment, then they are liberty to approach “the ITAT” constituted for the purpose of adjudicating the issues. This being the efficacious remedy available under the statute for the writ petitioner, there is no reason to entertain a writ petition under Article 226 of the Constitution of India, so as to adjudicate the merits and the demerits now raised before this Court in the present writ petition in respect of fixing of average rate of royalty payment. 24. Under these circumstances, this Court is of an undoubted opinion that the writ petitioner has not made out any case for the purpose of waiving the efficacious alternate remedy available to the writ petitioner under the provisions of the Act and therefore, this Court is not inclined to entertain the writ petition on merits and adjudicate the issues involved in respect of fixing of average rate of royalty payment. 25. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.” 7. In view of the principles laid down, a writ petition cannot be entertained, if there is a statutory appeal is provided under the Act. 8. In the present case, the petitioner has not exhausted the appeal remedy and therefore, this Court is not inclined to entertain the writ petition and accordingly, the writ petition stands dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
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12-03-2020 The Adirampattinam Education Trust, Adirampattinam Represented by its Secretary, M.S. Tajudeen & Another Versus The Government of Tamil Nadu, Rep. by its Secretary to Government, Revenue and Disaster Management Department, Secretariate, Chennai & Others Before the Madurai Bench of Madras High Court
12-03-2020 S. Chandrasekara Raja Versus The Sub-Registrar, Nanguneri Sub Registrar's Office, Nanguneri, Tirunelveli District & Others Before the Madurai Bench of Madras High Court
11-03-2020 Arjunan Versus State rep.by Deputy Superintendent of Police, (Omalur Sub Division), Salem High Court of Judicature at Madras
11-03-2020 S. Durai Versus The Assistant Engineer, CIT Nagar-I, Chennai Electricity Distribution Circle, Saidapet, Chennai & Another High Court of Judicature at Madras
11-03-2020 South Delhi Municipal Corporation of Delhi Through its Commissioner, Delhi Versus M/s. Sawhney Export House Pvt. Ltd. Through its Managing Director, New Delhi & Another National Consumer Disputes Redressal Commission NCDRC
11-03-2020 Kasim Versus State, Rep. by Inspector of Police, D3 Ice House Police Station, Chennai High Court of Judicature at Madras
10-03-2020 National Company, Represented by its Managing Director, Dr. Arun A Raja Versus Joint Chief Controller of Explosives Ministry of Commerce and Industry, Petroleum & Explosives Safety Organization (PESO), (Formerly Department of Explosives), Egmore, Chennai & Others High Court of Judicature at Madras
10-03-2020 M/s. Professional Management Consultants (P) Ltd., Chennai Versus Employees State Insurance Corporation, Rep by its Joint Director, Chennai High Court of Judicature at Madras
09-03-2020 The Principal Officer, M/s. RR Donnelley India Outsource Private Limited, (Formerly known as Astron Document Management Private Limited), Rep. by its Jyothi Prosad Bose, Director Versus Deputy Commissioner of Income Tax, Corporate Circle – 5 (2) High Court of Judicature at Madras
06-03-2020 S. Raja Versus State rep by Inspector of Police, District Crime Branch, Kanyakumari & Another Before the Madurai Bench of Madras High Court
06-03-2020 Raja Versus State rep. by its Deputy Superintendent of Police, Thirumangalam Inner Division, Madurai Before the Madurai Bench of Madras High Court
06-03-2020 Remedial Resolutions Advisors Private Limited (Formerly known as Stressed Asset Management Advisors and Settlement Company Pvt. Ltd.) & Others Versus Capri UK Investments Limited & Others High Court of Judicature at Bombay
06-03-2020 Raja Versus State rep. by its Deputy Superintendent of Police, Thirumangalam Inner Division, Madurai Before the Madurai Bench of Madras High Court
05-03-2020 Gunjan Kumar Versus Management of Circle Head Punjab National Bank, Darbhanga & Others High Court of Judicature at Patna
04-03-2020 Kaliappan Versus The District Collector, Collectorate, Salem-1 & Others High Court of Judicature at Madras
04-03-2020 A.K. Raja Versus Union of India High Court of Chhattisgarh
03-03-2020 In The Matter of: Liberty House Group Pte. Ltd. V/S State Bank of India And Others National Company Law Appellate Tribunal
03-03-2020 Palanivel @ Prakash Versus State Rep.by Inspector of Police, Thalaivasal Police Station, Salem & Another High Court of Judicature at Madras
03-03-2020 Reliance General Insurance Co. Ltd., Salem Versus Parameshwari & Others High Court of Judicature at Madras
03-03-2020 Bhanot House Flat Owners/Occupants Association Versus Bhanot Construction & Housing Limited Through Its Directors Delhi State Consumer Disputes Redressal Commission New Delhi
03-03-2020 T.D. Watson Versus The Principal Secretary / Commissioner of Revenue Administration, Disaster Management and Mitigation Department, Ezhilagam & Another Before the Madurai Bench of Madras High Court
03-03-2020 M/s. Sumeru Soft P.Ltd, T. Nagar, Chennai Versus The Income Tax Officer, Corporate Ward - 6[4], Chennai High Court of Judicature at Madras
02-03-2020 In The Matter of Anil Duggal Director Representing the suspended management of Duggal Associates Private Ltd., Delhi Versus Roofs & Ceilings Pvt. Ltd., Ghatkopar (W) Mumbai National Company Law Appellate Tribunal
02-03-2020 G.T.P. Transport Company, Swaranpuri, Salem & Another Versus National Insurance Company Ltd., Divisional Manager, Salem & Another High Court of Judicature at Madras
02-03-2020 K. Sundari Versus The District Collector, Salem High Court of Judicature at Madras
28-02-2020 Pragalathan & Another Versus State rep. by the Station House Officer, Karaikal High Court of Judicature at Madras
28-02-2020 Tata Power Delhi Distribution Ltd Having its Registered office at NDPL House, Hudson Lines, New Delhi V/S Delhi Electricity Regulatory Commission Through its Secretary, New Delhi Appellate Tribunal for Electricity Appellate Jurisdiction
28-02-2020 Nagar Nigam & Another Versus District Consumer Forum I, Lucknow & Another High Court Of Judicature At Allahabad Lucknow Bench
28-02-2020 M/s. Padmavathi Hospitality & Facilities Management Services, Rep. by its Partner & Authorized Representative Pradeep Kanumuri & Another V/S The Tamil Nadu Medical Service Corporation (A Government of Tamil Nadu undertaking) Chennai & Others High Court of Judicature at Madras
27-02-2020 Dhariwal Infrastructure Limited Mr. Subhransu Gupta, Chief Financial Officer CESE House Chowringhe Square Kolkata Versus Maharashtra Electricity Regulatory Commission & Others Appellate Tribunal for Electricity Appellate Jurisdiction
26-02-2020 State Bank of India Stressed Assets Management Branch- II, Kolkata Versus Maithan Alloys Limited, Kolkatta & Others National Company Law Appellate Tribunal